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Although immigration regulations oversee all nonimmigrant work authorization, the Department of Labor rules apply as well. The general rule under the Fair Labor Standards Act (FLSA) is that, if an individual works under the direction and control of a company or organization, and provides a beneficial service for the company or organization, the individual is supposed to be paid at least the federal minimum wage for the service.
There are exceptions to this rule, but the exceptions are limited. For example, an individual can provide truly volunteer services for a charitable nonprofit organization (such as working a church bake sale, helping the homeless, and so on).
But what about volunteer training or internship programs with private for-profit employers?
The Department of Labor (DOL) Wage and Hour Division has established a six-factor test for determining whether work is legitimately volunteer training (for which no pay or work authorization is required) or whether it is employment (for which pay and work authorization is required).
If all six of the following criteria apply, the trainees are not employees within the meaning of the FLSA, and are properly classified as unpaid volunteers for which no "employment authorization" is required:
- The training, even though it includes actual operation of the employer's facilities, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees;
- The trainees do not displace regular employees, but work under close supervision;
- The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer's operations may actually be impeded;
- The trainees are not necessarily entitled to a job at the completion of the training period; and
- The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
The fourth item is the most problematic in many cases. Note that all six factors must be satisfied to qualify as volunteerism.
Safest Path for International Students
Given the difficulty and ambiguity of the DOL six-factor test, the safest rule for international students should be that, if a student is providing a beneficial service to an employer, whether paid or unpaid, the student should obtain proper authorization to work. If a foreign student engages in an unpaid training without proper work authorization, and the DOL or a court later determines that the training should have been paid employment, the foreign student will have violated their immigration status, and the employer will have violated labor laws, and both may have serious ramifications
WVU has its own volunteering community! Most, if not all, of the positions found on WVU's volunteer pages should qualify as true voluntary work! For more information, please visit WVU's iServe website.